THIS GUARANTY
dated as of November 1, 2006 executed and delivered by each of
the undersigned and the other Persons from time to time party
hereto pursuant to the execution and delivery of an Accession
Agreement in the form of Annex I hereto (all of the undersigned,
together with such other Persons each a “Guarantor” and
collectively, the “Guarantors”) in favor of WACHOVIA
BANK, NATIONAL ASSOCIATION, in its capacity as Lender under that
certain Credit Agreement dated as of November 1, 2006 (as
amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), by and between
U-Store-It, L.P. (the “Borrower”) and the
Lender.
WHEREAS, pursuant
to the Credit Agreement, the Lender has agreed to make available to
the Borrower certain financial accommodations on the terms and
conditions set forth in the Credit Agreement;
WHEREAS, the
Borrower and each of the Guarantors, though separate legal
entities, are mutually dependent on each other in the conduct of
their respective businesses as an integrated operation and have
determined it to be in their mutual best interests to obtain
financing from the Lender through their collective
efforts;
WHEREAS, each
Guarantor acknowledges that it will receive direct and indirect
benefits from the Lender making such financial accommodations
available to the Borrower under the Credit Agreement and,
accordingly, each Guarantor is willing to guarantee the
Borrower’s obligations to the Lender on the terms and
conditions contained herein; and
WHEREAS, each
Guarantor’s execution and delivery of this Guaranty is a
condition to the Lender making such financial accommodations to the
Borrower.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by each Guarantor, each Guarantor
agrees as follows:
Section 1.
Guaranty . Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties the due and punctual payment and
performance when due, whether at stated maturity, by acceleration
or otherwise, of all of the following (collectively referred to as
the “Guarantied Obligations”): (a) all
indebtedness and obligations owing by the Borrower to the Lender
under or in connection with the Credit Agreement and any other Loan
Document, including without limitation, the repayment of the
principal of the Loan, and the payment of all interest, Fees,
charges, reasonable attorneys’ fees and other amounts payable
to the Lender thereunder or in connection therewith; (b) any
and all extensions, renewals, modifications, amendments or
substitutions of the foregoing; (c) all expenses, including,
without limitation, reasonable attorneys’ fees and
disbursements, that are incurred by the Lender in the enforcement
of any of the foregoing or any obligation of such Guarantor
hereunder; and (d) all other Obligations.
Section 2.
Guaranty of Payment and Not of Collection . This Guaranty is
a guaranty of payment, and not of collection, and a debt of each
Guarantor for its own account. Accordingly, the Lender shall not be
obligated or required before enforcing this Guaranty against any
Guarantor: (a) to pursue any right or remedy it may have
against the Borrower, any other Guarantor or any other Person or
commence any suit or other proceeding against the Borrower, any
other Guarantor or any other Person in any court or other tribunal;
(b) to make any claim in a liquidation or bankruptcy of the
Borrower, any other Guarantor or any other Person; or (c) to
make demand of the Borrower, any other Guarantor or any other
Person or to enforce or seek to enforce or realize upon any
collateral security held by the Lender which may secure any of the
Guarantied Obligations.
Section 3.
Guaranty Absolute . Each Guarantor guarantees that the
Guarantied Obligations will be paid strictly in accordance with the
terms of the documents evidencing the same, regardless of any
Applicable Law now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Lender with
respect thereto. The liability of each Guarantor under this
Guaranty shall be absolute, irrevocable and unconditional in
accordance with its terms and shall remain in full force and effect
without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance
or occurrence whatsoever, including without limitation, the
following (whether or not such Guarantor consents thereto or has
notice thereof):
(a) (i) any
change in the amount, interest rate or due date or other term of
any of the Guarantied Obligations, (ii) any change in the
time, place or manner of payment of all or any portion of the
Guarantied Obligations, (iii) any amendment or waiver of, or
consent to the departure from or other indulgence with respect to,
the Credit Agreement, any other Loan Document, or any other
document or instrument evidencing or relating to any Guarantied
Obligations, or (iv) any waiver, renewal, extension, addition, or
supplement to, or deletion from, or any other action or inaction
under or in respect of, the Credit Agreement, any of the other Loan
Documents, or any other documents, instruments or agreements
relating to the Guarantied Obligations or any other instrument or
agreement referred to therein or evidencing any Guarantied
Obligations or any assignment or transfer of any of the
foregoing;
(b) any lack
of validity or enforceability of the Credit Agreement, any of the
other Loan Documents, or any other document, instrument or
agreement referred to therein or evidencing any Guarantied
Obligations or any assignment or transfer of any of the
foregoing;
(c) any
furnishing to the Lender of any security for the Guarantied
Obligations, or any sale, exchange, release or surrender of, or
realization on, any collateral securing any of the
Obligations;
(d) any
settlement or compromise of any of the Guarantied Obligations, any
security therefor, or any liability of any other party with respect
to the Guarantied Obligations, or any subordination of the payment
of the Guarantied Obligations to the payment of any other liability
of the Borrower or any other Loan Party;
(e) any
bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to such
Guarantor, the Borrower, any other Loan Party or any other Person,
or any action taken with respect to this Guaranty by any trustee or
receiver, or by any court, in any such proceeding;
(f) any act
or failure to act by the Borrower, any other Loan Party or any
other Person which may adversely affect such Guarantor’s
subrogation rights, if any, against the Borrower to recover
payments made under this Guaranty;
(g) any
nonperfection or impairment of any security interest or other Lien
on any collateral, if any, securing in any way any of the
Obligations;
(h) any
application of sums paid by the Borrower, any other Guarantor or
any other Person with respect to the liabilities of the Borrower to
the Lender, regardless of what liabilities of the Borrower remain
unpaid;
(i) any
defect, limitation or insufficiency in the borrowing powers of the
Borrower or in the exercise thereof;
(j) any
defense, set-off, claim or counterclaim (other than indefeasible
payment and performance in full) which may at any time be available
to or be asserted by the Borrower, any other Loan Party or any
other Person against the Lender;
(k) any
change in the corporate existence, structure or ownership of the
Borrower or any other Loan Party;
(l) any
statement, representation or warranty made or deemed made by or on
behalf of the Borrower, any Guarantor or any other Loan Party under
any Loan Document, or any amendment hereto or thereto, proves to
have been incorrect or misleading in any respect; or
(m) any other
circumstance which might otherwise constitute a defense available
to, or a discharge of, a Guarantor hereunder (other than
indefeasible payment and performance in full).
Section 4.
Action with Respect to Guarantied Obligations . The Lender
may, at any time and from time to time, without the consent of, or
notice to, any Guarantor, and without discharging any Guarantor
from its obligations hereunder, take any and all actions described
in Section 3 and may otherwise: (a) amend, modify, alter
or supplement the terms of any of the Guarantied Obligations,
including, but not limited to, extending or shortening the time of
payment of any of the Guarantied Obligations or changing the
interest rate that may accrue on any of the Guarantied Obligations;
(b) amend, modify, alter or supplement the Credit Agreement or
any other Loan Document; (c) sell, exchange, release or
otherwise deal with all, or any part, of any collateral securing
any of the Obligations; (d) release any other Loan Party or
other Person liable in any manner for the payment or collection of
the Guarantied Obligations; (e) exercise, or refrain from
exercising, any rights against the Borrower, any other Guarantor or
any other
Person; and (f)
apply any sum, by whomsoever paid or however realized, to the
Guarantied Obligations in such order as the Lender shall
elect.
Section 5.
Representations and Warranties . Each Guarantor hereby makes
to the Lender all of the representations and warranties made by the
Borrower with respect to or in any way relating to such Guarantor
in the Credit Agreement and the other Loan Documents, as if the
same were set forth herein in full.
Section 6.
Covenants . Each Guarantor will comply with all covenants
which the Borrower is to cause such Guarantor to comply with under
the terms of the Credit Agreement or any of the other Loan
Documents.
Section 7.
Waiver . Each Guarantor, to the fullest extent permitted by
Applicable Law, hereby waives notice of acceptance hereof or any
presentment, demand, protest or notice of any kind, and any other
act or thing, or omission or delay to do any other act or thing,
which in any manner or to any extent might vary the risk of such
Guarantor or which otherwise might operate to discharge such
Guarantor from its obligations hereunder.
Section 8.
Inability to Accelerate Loan . If the Lender is prevented
under Applicable Law or otherwise from demanding or accelerating
payment of any of the Guarantied Obligations by reason of any
automatic stay or otherwise, the Lender shall be entitled to
receive from each Guarantor, upon demand therefor, the sums which
otherwise would have been due had such demand or acceleration
occurred.
Section 9.
Reinstatement of Guarantied Obligations . If claim is ever
made on the Lender for repayment or recovery of any amount or
amounts received in payment or on account of any of the Guarantied
Obligations, and the Lender repays all or part of said amount by
reason of (a) any judgment, decree or order of any court or
administrative body of competent jurisdiction, or (b) any
settlement or compromise of any such claim effected by the Lender
with any s
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